would go to the charterer if the charter were a demise; to the owner if the charter were not a demise (h): (5) Where statutory duties are imposed on the "owner" of a ship, such as the duty of paying for the burial of cattle washed ashore from a ship or wreck, in the absence of express provisions in the charter, the charterer would be liable if the charter were a demise, the owner if it were not (i). Lord Esher's judgment in Baumvoll v. Gilchrest & Co. (j) suggests that the true distinction between the two classes of charter is whether the owner has for the time parted with "the whole possession and control of the ship."

I. Cases in which a charter has been held not to be a demise.

Case 1.-A. chartered a ship to C., to sail to X., and load from C.'s agent there, cargo to be stowed at merchant's risk and expense. The captain to sign bills of lading if required at any rate of freight without prejudice to

the charter.

At X. goods were shipped by shippers who knew nothing of the charter (k) under a bill of lading signed by the master.

Held, that A. had not parted with the possession of the ship; that the master was still A.'s servant, and that his signature to a bill of lading bound A. That the stowage of goods was by a stevedore appointed by the charterers, though ultimately paid by the owners, made no difference (1).

....

Case 2.-A. entered into a charter with C. that his ship being staunch, "and so maintained by owners, shall be placed under the direction of the charterer" for conveyance of goods within specified limits. "The steamer to be let for the sole use of charterers and for their benefit for six months. Charterers to have whole reach of hold and usual places of loading, room being reserved to owners for crew. . . . Captain to use despatch in prosecuting voyage, and crew to render customary assistance in loading; captain to sign bills of lading . . . and to follow the instructions of the charterers as regards loading. coals at cost of charterers, owners finding all ship's stores, and paying crew's wages ... captain to furnish charterers with log, and to use sails when possible to save coals . . . vessel to be returned at end of period by charterers."

As a fact, A. paid the master and crew.

(h) Vide post, Article 121.

(i) cf. Trinity House v. Clark (1815), 4 M. & S. 288; post, p. 6. On the liability of a ship in rem for a collision, when the charter amounts to a demise, see The Tasmania (1888), 13 P. D. 110; and Article 122, post. On the personal liability of the owner of a ship proceeded against in rem; see The Dictator (1892),

P. 304.

(j) (1892), 1 Q. B. 253: (1893) A. C. 8.

(k) If they had known of the charter, they could only have sued the charterer on the contract. Newberry v. Colvin (1832), 1 Cl. & F. 283.

(1) Sandeman v. Scurr (1866), L. R. 2 Q. B. 86. If A. had parted with the possession and control of the ship, he would not have been bound by the acts of a master who was not his servant, even to shippers ignorant of the charter. Baumvoll v. Gilchrest (1892), 1 Q. B. 253; (1893) A. C. 8. Steel v. Lester, vide post, is explained in that case by Lopes, L.J. (p. 261) as turning on the owner's appointment of, and power of dismissing, the captain.

Held, that there was no demise; and that A. was still responsible for acts of the master and crew, both to the public and to C. (m).

Case 3.-A., registered as the "managing owner" of a ship under the Merchant Shipping Acts, made an agreement with E., the master, that E. should take the ship wherever he chose, shipping whatever cargo he thought fit, engaging the crew, and paying A. one-third of the net profits. A. under this agreement had no control over the vessel. E. made a charter, which A. knew nothing about, with C., "between E., master, for and on behalf of the owners." Held, that this arrangement did not amount to a demise to E., but that A. still remained liable to the public as "managing owner" (n).

Case 4.--C. hired a steamer for the day from A., who sent him this memorandum: "I note the S. is engaged to you for X. for May 28, at hire per day of £5, your party not exceeding fifty persons." A. employed and paid the master and crew, who navigated the vessel. Held, that C. had no such exclusive possession as to justify him in expelling a stranger who came on board by consent of the captain, though he could sue A. for breach of contract (o).

II. Cases where it was held that the charter amounted to a demise.

Case 5.-A. by deed appointed E. to command a ship on a certain voyage, paying a certain freight to A. and retaining the surplus for himself; A. had a super-cargo on board with power to supersede E. if he misconducted himself. By another instrument E. was to be paid wages by A. The deed or charter was made bonâ fide, and persons who shipped goods were aware of it. Held (by the House of Lords), that E. was owner of the ship pro tempore, and was alone liable to shippers on the bill of lading (p).

Case 6.-A. had purchased a ship for the purpose of selling it to C. under an agreement which provided for payment of part of the purchasemoney down, and part at the expiration of a charter of the same date. Under this charter A. agreed to let and C. to hire the steamer for four months, the charterer to provide and pay for provisions and wages of captain, officers, engineers, and crew; owner to pay insurance and maintain steamer in an efficient condition during service; charterers to provide and pay for coal, port-charges, pilotage, etc. Payment for use and hire of vessel at rate of £750 per calendar month, hire to continue until delivery of ship to owners, unless lost. Owner has option of appointing chief engineer, to be paid by the charterers. Owner to have lien on cargoes for freights due under charter.

C. appointed and paid captain, officers and crew; A. appointed chief engineer. A. was registered as owner and managing owner.

Held, that A. had parted with the possession and control of the vessel,

(m) Omoa Coal and Iron Company v. Huntley (1877), 2 C. P. D. 464.

(n) Steel v. Lester (1877), 3 C. P. D. 121; See also Christie v. Lewis (1821): 2 B. & B. 410; and Saville v. Campion (1819), 2 B. & Ald. 503; and compare with Newberry v. Colvin (1832), 1 Cl. & F. 283.

(0) Dean v. Hogg (1834), 10 Bing. 345; see also Lucas v. Nockells (1828), 4 Bing. 729.

(p) Newberry v. Colvin (1832), 1 Cl. & F. 283.

so that he was not liable to shippers ignorant of the charter on bills of lading signed by the master (7).

Case 7.-A. chartered a ship to C. "to be placed under the direction of C.," to be employed within certain limits as ordered by C. "The said steamer is let for the sole use of C. and for his benefit for three or more calendar months at C.'s option, he having the whole reach and burden of the vessel, freight payable till the vessel is again returned by C." C. to supply coals and pay all wages, expenses, etc., except insurance. The vessel to be delivered up to A. on the termination of the charter in the same good order and condition as when delivered." Held, to amount to a demise of the ship to C. (r).

Case 8.—A. “granted and to hire and freight let" his ship to the Crown, for transport for three months, and afterwards for so long as required. The master and crew were employed and paid by A. Held, that the Crown was temporarily owner, so that A. was not liable for light dues to be paid by "the owners of ships; " and that the master and crew were only employed by A. to enable the Crown to enjoy its ownership to the best advantage (s).

Article 3.-The Bill of Lading.

A bill of lading is a receipt for goods shipped on board a ship, signed by the person who contracts to carry them, or his agent, and stating the terms on which the goods were delivered to and received by the ship. It is not the contract, for that has been made before the bill of lading was signed and delivered, but it is excellent evidence of the terms of the contract (t).

(q) Baumvoll v. Gilchrest (1893), A. C. 8. See Article 18, post, and Belcher v. Capper (1842), 4 M. & G. 502.

(r) Meiklereid v. West (1876), 1 Q. B. D. 428.

(s) Master of Trinity House v. Clark (1815), 4 M. & S. 288. This case, as also Frazer v. Marsh (1811), 13 East, 238, and Hutton v. Bragg (1816), 7 Taunton, 14, have been so much distinguished and doubted, especially in Christie v. Lewis (1821), 2 B. & B. 410, and Sandeman v. Scurr (1866), L. R. 2 Q. B. 86, that they cannot be considered of much authority. Lord Ellenborough's language in Frazer v. Marsh, laying stress on the loss of "control and possession" by the owner, is however cited with approval by Lord Esher in Baumvoll v. Gilchrest (1892), 1 Q. B. at p. 259; and by Lord Herschell (1893), A. C. at p. 18. The old style of "granting to hire and to freight let," has dropped out of charters, and the modern form of charter, "It is mutually agreed between A., owner of the S. and C., that the S. shall proceed to X. and then load a cargo," can rarely, if ever, be construed as a demise. Some American charters are made by deed, and run that the parties to the deed "covenant and agree in the freighting and chartering of the vessel," and the charterer "covenants to charter and hire," but the whole frame of the charter shows that no demise is intended. Some charters go so far that the owner only contracts "to provide a screw steamer," of a certain class and tonnage, for a certain voyage. If the charter does amount to a demise, the hirer will not be liable for damage to the ship through the act of God without his negligence. Smith v. Drummond, 1 C. & E. 160 (1883). (t) Per Lord Bramwell, in Sewell v. Burdick (1884), 10 App. C. 105.

The terms of the contract may also be gathered from the charter, where there is one, and either some or all of its terms are expressly incorporated in the bill of lading, or the charterer is also the shipper, in which latter case the bill of lading as between charterer and shipowner is usually merely a receipt (u): from the mate's receipt (x), shippingcards (y), placards, or handbills (z) announcing the sailing of the ship; or from representations by the broker, or other agent of the carrier (a).

Note. Shippers are usually well aware of the terms on which goods are shipped in any regular line or trade, as the bills of lading are printed and sold by firms of stationers, the particulars of the goods being filled in by the shippers themselves, who then leave them for signature at the office of the broker of the line. The judgment of Mellish, L.J., in Parker v. South Eastern Railway Co. (b), in its assumption that a person taking a bill of lading must necessarily be bound by all its terms, for he knows that the contract of carriage is contained in it, seems a little too sweeping in view of the actual course of business. Modern bills of lading contain "a long list of excepted perils, exemptions from and qualifications of liability, printed in type so minute, though clear, as not only not to attract attention to any of the details, but to be only readable by persons of good eyesight."

A question may therefore arise whether the bill of lading really represents the terms of the contract to which the shipper agreed, as where it contains in small print very unusual clauses. Thus, in Crooks v. Allan (c) Lush, J., in delivering judgment, said: "If a shipowner wishes to introduce into his bill of lading so novel à clause, as one exempting him from general average contribution . . . . he ought not only to make it clear in words, but also to make it conspicuous by inserting it in such type and in such part of the document that a person of ordinary capacity and care could not fail to see it. A bill of lading is not the contract, but only evidence of the contract, and it does not follow that a person who accepts the bill of lading which the shipowner hands him, is necessarily and

67.

(u) Vide post, Articles 18, 19, and see Rodocanachi v. Milburn (1886), 18 Q. B. D.

(x) De Clermont v. General Steam Nav. Co. (1891), 7 Times L. R. 187.

(y) Peel v. Price (1815), 4 Camp. 243.

(z) Phillips v. Edwards (1858), 3 H. & N. 813.

(a) Runquist v. Ditchell (1800), 3 Esp. 64.

(b) (1877) 2 C. P. D. 422.

(c) (1879) 5 Q. B. D. 38 cf. p. 41; and see Rodocanachi v. Milburn (1886) 18 Q. B. D. 67.

without regard to circumstances bound to abide by all its stipulations."

So in Lewis v. McKee (d) the captain was held not affected by a restrictive endorsement on a bill of lading, to which his attention was not called, and, semble, which he could not ordinarily and reasonably be expected to see.

The same principle governs the effect of the restrictive stamps sometimes affixed in London to bills of lading for parts of a journey, for which one through bill of lading has already been signed (e). The question is similar to that raised in the "cloakroom cases," which are fully discussed in Watkins v. Rymill (ƒ). There would be two questions of fact for the jury: (1) Was the shipper actually aware of the particular clause or stamp? (2) If not, were reasonable means taken to inform him of it, and would a reasonable man have been aware of it? While a shipper who has shipped under a particular form of bill of lading for some time without objection would be treated as bound by its terms, it would certainly be advisable for a shipowner to give him notice of any change in that form (g).

Article 4.-Effect of Illegality on a Contract of Affreightment.

Where the contract of affreightment cannot be performed without a violation of English law, it is void, whether the parties knew of the illegality or not, when it was entered into (h).

Illegality by foreign law is treated by English law as impossibility in fact, and discharges the parties where it prevents something which they are both bound to do within a reasonable time, not otherwise defined (i), but not when it only prevents an act which one of them has agreed to perform within a fixed time (k).

Where a contract can be performed in two ways, one of

(d) (1868) L. R. 4 Ex. 58.
(e) Vide post, Article 22.
(ƒ) (1883) 10 Q. B. D. 178.

(g) For a case arising from changes in the usual form of bill of lading; see De Clermont v. General Steam Nav. Co. (1891), 7 Times L. R. 187.

(h) Esposito v. Bowden (1857), 7 E. & B. 762; see also Barker v. Hodgson (1814), 3 M. & S. 267, 270; Atkinson v. Ritchie (1809), 10 East. 530, at p. 535. (i) Ford v. Cotesworth (1870), L. R. 5 Q. B. 544; Cargo ex Argos (1878), L. R. 5 P. C. 134, and note to Article 132, post.

(k) As in Blight v. Page (1801), 3 B. & P. 295, note; see also Kirk v. Gibbs (1857), 1 H. & N. 810.